United States v. Reyes
| Decision Date | 01 August 2017 |
| Docket Number | No. 16-40241,16-40241 |
| Citation | 866 F.3d 316 |
| Parties | UNITED STATES of America, Plaintiff-Appellee v. Osman Rutilio REYES, Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lauretta Drake Bahry, Renata Ann Gowie, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Evan Gray Howze, Assistant Federal Public Defenders, John Moreno Parras, Federal Public Defender's Office, for Defendant-Appellant.
Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
This Court implicitly held in United States v. Velasco , 465 F.3d 633 (5th Cir. 2006), that the Illinois aggravated battery statute is divisible—meaning that if a defendant has a prior conviction under that statute and a sentencing court must determine whether this prior conviction qualifies for a sentencing enhancement, the court should look to certain records of conviction to identify the particular offense of which the defendant had been convicted. Applying Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), we must decide whether that holding retains vitality. We find that it does.
Recitation of only a few facts is necessary. In April of 2015, defendant Osman Rutilio Reyes was convicted of aggravated battery under Illinois' aggravated battery statute, 720 Ill. Comp. Stat. Ann. § 5/12-3.05. More specifically, he was convicted of aggravated battery with a deadly weapon under Section 5/12-3.05(f)(1). Reyes was deported in May of that year. By August, he was back in the country. Immigration and Customs Enforcement agents apprehended him in Texas, and he pleaded guilty to violating 8 U.S.C. § 1326.
The district court found that Reyes' prior conviction qualified as a crime of violence for purposes of the United States Sentencing Guidelines and imposed a 16-level sentencing enhancement when calculating the applicable Guidelines range. See USSG § 2L1.2(b)(1)(A)(ii). This ruling was required by Velasco , which had held that a conviction under the Illinois aggravated battery statute for aggravated battery based on the use of a deadly weapon necessarily involved "the use of force" and therefore categorically qualified as a crime of violence. 465 F.3d at 638–40 (citing 720 Ill. Comp. Stat. 5/12–4(b)(1) ). The opinion also recognized that when Illinois' aggravated battery statute cannot be "pare[d] down," a conviction under the statute will not categorically qualify as a crime of violence because the "statute provides for the commission of the offense of aggravated battery in a number of different ways, some of which do not require the use of physical force against a person." Id. at 639 (quoting United States v. Aguilar-Delgado , 120 Fed.Appx. 522, 523 (5th Cir. 2004) ).
Though Velasco foreclosed his argument, Reyes duly objected to a crime-of-violence sentencing enhancement on the grounds that the Illinois aggravated battery statute is indivisible. As that very case shows, a finding of indivisibility would establish the sentencing enhancement's impropriety. See Velasco , 465 F.3d at 639. On appeal, we consider Reyes' divisibility argument in light of Mathis , and review is de novo . See United States v. Sam , 467 F.3d 857, 861 (5th Cir. 2006). Because Reyes is challenging a precedent of this Court, he must show that Mathis "unequivocally abrogated" Velasco . United States v. Tanksley , 848 F.3d 347, 350 (5th Cir.), supplemented , 854 F.3d 284 (5th Cir. 2017). Mathis "is controlling regarding the methodology of the modified categorical approach," United States v. Hinkle , 832 F.3d 569, 574 (5th Cir. 2016), so our task is to check the result of Velasco according to the method of Mathis , see Tanksley , 848 F.3d at 351.
The broad issue in this case is whether Reyes' conviction under the Illinois aggravated battery statute properly counts as a crime of violence under the Guidelines. "To determine whether a given prior conviction qualifies for a Guidelines enhancement, courts use either (1) the categorical approach or (2) the modified categorical approach." United States v. Rico-Mejia , 859 F.3d 318, 322 (5th Cir. 2017). Courts applying the categorical approach simply "look to the elements of the offense enumerated or defined by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted." United States v. Howell , 838 F.3d 489, 494 (5th Cir. 2016).
Some statutes resist this approach because they "list elements in the alternative, and thereby define multiple crimes." Mathis , 136 S.Ct. at 2249. When confronted with such a statute, courts employ the modified categorical approach and examine "a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. Some statutes seem at a glance to bear this same structure but, upon examination, merely list "various factual means of committing a single element." Id. When a statute lists different possible ways of committing one crime, the modified categorical approach is impermissible. Id. at 2251.
The Illinois aggravated battery statute is lengthy and complex. See 720 Ill. Comp. Stat. § 5/12-3.05(a) – (g). According to the government, the statute sets forth the necessary alternative elements that render the modified categorical approach permissible and allow Reyes' prior conviction to be identified as an aggravated battery involving the use of a deadly weapon. See 720 Ill. Comp. Stat. § 5/12-3.05(f)(1). According to Reyes, the statute is indivisible and "overbroad" in that it "sweeps in conduct that does not qualify as a ‘crime of violence.’ " Reyes' fallback position is that even if the aggravated battery statute can be narrowed to Section 5/12-3.05(f), it cannot be narrowed further. In other words, Section 5/12-3.05(f) is itself indivisible and overbroad.
In determining if the aggravated battery statute is divisible, we look to its alternative components and ask "elements or means?" Mathis , 136 S.Ct. at 2256. State law governs this "threshold inquiry." Id. State courts are the ideal expositors of state law, but we may also examine the statutory text and structure or, if necessary, "the record of a prior conviction itself." Id. If the Illinois aggravated battery statute lists various means of committing one aggravated battery offense, it is indivisible. Hinkle , 832 F.3d at 575. In such a case, a jury need not agree on how the offense was committed, and Reyes' crime of conviction could not be narrowed to encompass any one factual theory, no matter the actual evidence or indictment in his case. Mathis , 136 S.Ct. at 2251. Elements, by contrast, are those "things the ‘prosecution must prove to sustain a conviction.’ " Id. at 2248 (quoting Black's Law Dictionary 634 (10th ed. 2014)). Distilled to its essence, Mathis recognizes that, when applying a recidivism statute to a defendant's prior convictions, each "crime of conviction" is defined by solely by its elements. Id. at 2251. "How a given defendant actually perpetrated the crime" is irrelevant, "regardless of whether a statute omits or instead specifies alternative possible means of commission." Id.
We first consider Reyes' broad argument: that the "aggravated battery statute contains [a] lengthy list of ways that a person can violate the statute." (Emphasis added (citing 720 Ill. Comp. Stat. § 5/12-3.05(a) – (g) ).) Do its many subsections and their nested paragraphs simply establish a multiplicity of ways of committing one aggravated battery offense? No. The Supreme Court of Illinois recently analyzed the aggravated battery statute and held that it contained (at least) two different crimes requiring different proofs.1 People v. Cherry , 407 Ill.Dec. 439, 63 N.E.3d 871, 877 (2016) ().
The Illinois aggravated battery statute sets forth many types of aggravated battery. It is error to analyze the statute as if it instead establishes a basic aggravated battery offense that is supplemented throughout the rest of the statute by various further-aggravating circumstances. Thus, in Cherry , the Supreme Court of Illinois rejected the appellate court's conclusion that aggravated battery with a firearm was merely "an enhanced version of aggravated battery." Id. (quoting People v. Cherry , 387 Ill.Dec. 624, 22 N.E.3d 1277, 1283 (App. Ct. 2014) ). And it chided the lower court for "wholly ignor[ing] the actual elements of these offenses." Id.
[T]he statutory elements plainly demonstrate that, rather than being an aggravated or enhanced version of aggravated battery , aggravated battery with a firearm is, like aggravated battery itself, an aggravated or enhanced version of battery . The aggravated battery and aggravated battery with a firearm statutes share an identical structure. Both offenses require the State to prove the commission of a battery, and both offenses require the State to prove the presence of an additional factor aggravating that battery.
Id. (emphases added).
Cherry thus forecloses Reyes' argument that the entirety of the aggravated battery statute is indivisible. Accordingly, our focus shifts to one particular subsection, Section 5/12-3.05(f) . Reyes' "crime of conviction" for purposes of Mathis is either a Section 5/12-3.05(f) violation (aggravated battery based on the use of a weapon or device ) or a 5/12-3.05(f)(1) violation (aggravated battery involving the use of a deadly weapon ). See 136 S.Ct. at 2251.
In its entirety, subsection (f) reads as follows:
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